Opinion
F085475
07-24-2023
In re J.F., a Person Coming Under the Juvenile Court Law. v. J.F., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, No. 22CEJ600236-1 Virna L. Santos, Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
In December 2022, defendant J.F. admitted the allegations in a juvenile wardship petition, after which the juvenile court granted J.F. a deferred entry of judgment (DEJ), subject to certain probation conditions. In this appeal, J.F. challenges only the court's imposition of a probation condition prohibiting his use of medical marijuana. We find no abuse of discretion by the juvenile court in its imposition of this specific condition of probation.
FACTUAL AND PROCEDURAL SUMMARY
On September 3, 2021, California Highway Patrol officers were patrolling in an area of Fresno when they observed a white sedan passing cars using the right shoulder of the roadway. When the officers attempted to initiate a traffic stop by turning on their patrol vehicle lights, the sedan cut in front of another vehicle and continued down the road. After the officers activated their siren, the sedan went through a stop sign. The sedan then made a dangerous U-turn, left the main roadway, and struck two parked cars, ending the pursuit. At this point, the driver of the sedan, identified as J.F., fled on foot and tried to jump over a fence. J.F. eventually was caught when a Fresno Police officer ordered him to the ground. Officers discovered a clear zip-lock bag on the front driver seat that contained a green leafy substance, later identified as marijuana.
The parties stipulated to the facts contained in a police report during the hearing considering the DEJ. While that report is not part of the record on appeal, the facts presented in that report were summarized in a report prepared by the probation department to assess J.F.'s suitability for a DEJ.
J.F., who was 17 years old at the time of this incident, explained he had become involved with the "wrong crowd" following a series of events detailed in the probation report prepared for the DEJ suitability hearing. While remorseful, J.F. admitted trying to get away from the officers, and that he had used marijuana earlier in the day, but denied being under the influence at the time of the incident.
On June 16, 2022, a juvenile wardship petition was filed, pursuant to Welfare and Institutions Code section 602, charging J.F. with evading an officer (Veh. Code, § 2800.2, subd. (a), a felony; count 1), hit and run driving (Veh. Code, § 20002, subd. (a), a misdemeanor; count 2), resisting, obstructing, or delaying an officer (Pen. Code, § 148, subd. (a)(1), a misdemeanor; count 3), and being an unlicensed driver (Veh. Code, § 12500, subd. (a), a misdemeanor; count 4). The prosecution later determined J.F. qualified for a DEJ under Welfare and Institutions Code section 790. On December 7, 2022, J.F. admitted the four charges alleged in the petition in exchange for his participation in a DEJ program.
During the hearing considering the suitability of a DEJ for J.F., the juvenile court addressed the question of "medical marijuana." The court stated:
"[T]his medical marijuana issue for you there's no medical marijuana. You're a minor. You just turned 18 but it's illegal for you to use. Second, it impairs you from making decisions at a time where you're still a teenager and you're not capable of making decisions because your brain is not fully developed. The newer science says that if you put more things into your brain while it's trying to develop you're interfering with that development. So, it's not good so you have to find other ways to cope."
The court then found J.F. suitable for DEJ and ordered J.F. to participate in such a program for a period of three years. In addition to what would be considered standard conditions of probation, the court also ordered J.F. to perform 50 hours of community service, ordered J.F. to write and submit to the probation officer a three-page essay on the effects of marijuana on adolescents, and required him to participate in a psychiatric substance abuse assessment.
J.F. filed a notice of appeal on December 22, 2022, immediately after the suitability hearing, appealing only the probation condition prohibiting the use of medical marijuana, noting he had a prescription from a physician for this substance.
DISCUSSION
Again, J.F. raises only the following issue in his opening brief:
"The probation condition prohibiting him from using medical marijuana even with a physician's prescription is unreasonable considering his circumstances and the circumstances of the offense. The condition does not meet the standard required under the test set forth in People v. Lent (1975) 15 Cal.3d 481 [ ], and should be stricken."
As stated in People v. Moran (2016) 1 Cal.5th 398, 403, footnote 6 (Moran), which we also rely upon in this opinion, a subsidiary holding in Lent concerning the use of misdemeanor convictions for impeachment was superseded by Proposition 8 in 1982.
The probation report prepared before the suitability hearing contains an admission by J.F. that he used marijuana on a daily basis to address anxiety. J.F. further stated that he used marijuana, for which he had a prescription, instead of other medications he had been prescribed for anxiety, believing there was a danger of becoming addicted to those other medications. There is no information in the record about the anxiety medications prescribed to J.F., or whether those medications were successful in controlling his anxiety.
I. The Applicable Standard of Review
When issuing an order granting probation, a court has the ability to suspend the imposition of a sentence if a defendant complies with terms and conditions deemed appropriate by the court. (Pen. Code, § 1203.1, subd. (a).) A condition of probation will be considered appropriate and will be upheld,"' "unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.....' [Citation.]" [Citation.] This test is conjunctive-all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.'" (Moran, supra, 1 Cal.5th at p. 403, citing People v. Lent, supra, 15 Cal.3d 481.) A condition of probation will be reviewed for an abuse of discretion and will be upheld unless "under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." (Moran, at p. 403.) Furthermore, it is a long-standing principle that trial courts have discretion to impose probation conditions that prohibit even legal activity. (Lent, at p. 486.)
When a case involves probation for an individual who committed a crime as a juvenile, Welfare and Institutions Code section 730, subdivision (b) authorizes the juvenile court to "impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (Welf. &Inst. Code, § 730, subd. (b).) Furthermore, a juvenile court enjoys broad discretion to fashion conditions of probation to rehabilitate, as long as the conditions are tailored specifically to meet the needs of the juvenile. (In re D.H. (2016) 4 Cal.App.5th 722, 727.) Probation conditions imposed by a juvenile court will not be disturbed in the absence of "manifest abuse." (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)
As noted above, when addressing the issue of medical marijuana, the juvenile court stated its belief J.F. could not be prescribed this substance because he was a minor.However, a review of the relevant statutes addressing the use of marijuana medically or recreationally does not reveal consistency on whether use is prohibited due to age. Specifically, the Compassionate Use Act of 1996 states "that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of [various conditions] for which marijuana provides relief." (Health &Saf. Code, § 11362.5, subd. (b)(1)(A).) No age restriction is stated in this provision for the availability of medical marijuana.
While J.F. was a minor when the crimes were committed, he was an adult (18 years of age) at the time of the suitability hearing held in December 2022.
All further statutory references will be to the Health and Safety Code.
In contrast, the enactment of section 11362.1, through the passage of Proposition 64 in 2016, resulted in the decriminalization of marijuana in designated amounts for individuals over the age of 21. (Prop. 64, § 4.4, as approved by voters, Gen. Elec. (Nov. 8, 2016).) Therefore, while J.F. may have been in violation of section 11362.1 because he was only 17 years old when he was arrested, and 18 years old when the probation condition prohibiting his use of marijuana was imposed, he might not have been in violation of section 11362.5 when using medical marijuana if it was properly prescribed by a physician. However, we do not believe we are required to resolve this specific issue at this time.
II. Application of the Lent/Moran Test
When considering the standard set out by our Supreme Court in both Lent and Moran, we cannot conclude the probation condition prohibiting the use of medical marijuana was inappropriate here, even though statutory authority exists permitting the use of medical marijuana during probation, with court approval. (See § 11362.795, subd. (a)(1), (2).)
Again, under Lent and Moran, when crafting conditions of probation, if a condition has no connection to the crime committed, prohibits conduct that is not criminal, or requires or prohibits conduct which is not reasonably related to preventing future criminality, the court cannot impose the condition. (Moran, supra, 1 Cal.5th at p. 403.) Such a condition would be subject to reversal for constituting a manifest abuse of discretion. (In re Josh W., supra, 55 Cal.App.4th at p. 5 .)
When applying this standard, we note J.F. insisted he was not under the influence at the time of the incident but did admit smoking marijuana earlier in the day. Based on the record before us, we have no certainty about the question of whether his use of marijuana earlier in the day impacted his actions during the incident. (See Moran, supra, 1 Cal.5th at p. 403.) While J.F.'s use of medical marijuana may not ultimately be criminal, it is not unreasonable to conclude his continued use could lead to future criminality, especially if it is not closely monitored by a physician. (Ibid.)
We recognize J.F. provided a valid prescription for the medical marijuana to address anxiety. However, the record also reveals J.F. was prescribed other medications for his anxiety that he chose not to take. This appears to have been a decision made by J.F., and not one made by a medical professional assessing the best treatment options for J.F. There was also evidence in the record provided by his mother that J.F. wanted to stop smoking marijuana. Given these facts and the lack of evidence in the record showing medical marijuana was necessary to treat J.F.'s anxiety, we cannot conclude the juvenile court manifestly abused its discretion when imposing the condition prohibiting the use of marijuana. (In re Josh W., supra, 55 Cal.App.4th at p. 5.)
There is a considerable amount of discussion in journals and law reviews addressing the use of medical marijuana. Many of these articles recognize that while medical marijuana has been approved and made "legal" in many jurisdictions, because there is not a definitive answer from the federal government, which likely has supremacy over the issue, a heightened level of proof may be necessary to uphold prescriptions for various individuals such as employees subject to drug testing and minors under the jurisdiction of a juvenile court. (See, e.g., McCabe, It's High Time: California Attempts to Clear the Smoke Surrounding the Compassionate Use Act (2004) 35 McGeorge L.Rev. 545; Cohen, Medical Marijuana: The Conflict Between Scientific Evidence and Political Ideology (2009) 2009 Utah L.Rev. 35.)
A. The Impact of Section 11362.795 on the Analysis
Our conclusion is also supported by analogous case law addressing the impact of section 11362.795, which provides in relevant part:
"(a)(1) Any criminal defendant who is eligible to use cannabis pursuant to [s]ection 11362.5 may request that the court confirm that he or she is allowed to use medicinal cannabis while he or she is on probation or released on bail.
"(2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court." (§ 11362.795, subd. (a)(1), (2).)
The appellate courts in both People v. Moret (2009) 180 Cal.App.4th 839, 853-854, and People v. Brooks (2010) 182 Cal.App.4th 1348, 1353, upheld probation conditions prohibiting the use of medical marijuana, even though the defendants in those cases had valid prescriptions. In Moret, the defendant pled no contest to a charge of possessing a concealed weapon. The Moret court questioned the defendant's credibility on various issues, including his need for marijuana to address migraines, when imposing a probation condition prohibiting the use of medical marijuana during probation. (See Moret, at pp. 848, 850.) Similarly in Brooks, the court also questioned the defendant's credibility after concluding his possession of marijuana was for sale rather than for personal use, and further noted no evidence supported the conclusion medical marijuana was the only or best drug available to treat defendant's specific health condition. (See Brooks, at pp. 1350, 1353.)
When addressing the ability to permit the use of medical marijuana during probation, the Moret court stated:
"The only reasonable interpretation of section 11362.795(a) is that a trial court has discretion to impose a no-marijuana-use probation condition on the holder of a medical marijuana card. This is so both because of the general law, ... regarding the broad authority vested in a trial court regarding such matters and also because of the specific language of the statute." (People v. Moret, supra, 180 Cal.App.4th at p. 853.)
The court in People v. Leal (2012) 210 Cal.App.4th 829, 848, reiterated this point by concluding the enactment of section 11362.795 did "not in any way diminish the court's authority and discretion to limit or proscribe lawful conduct under the Lent test. The Lent test is a settled judicial measure of which the Legislature is presumed to be aware when it acts [and] it is ... expected to specify any intent to limit its application."
We specifically reject the applicability of People v. Tilehkooh (2003) 113 Cal.App.4th 1433, relied upon by J.F. in his opening brief, as it was decided before the Legislature enacted section 11362.795, recognizing a court's ability to impose a probation condition prohibiting the use of medical marijuana. (See Stats. 2003, ch. 875, § 2.)
While a case with a stronger record supporting the need for medical marijuana by a minor may warrant this court to revisit the issue presented by section 11362.5 in the future, we have not been presented with that case now.
DISPOSITION
The order is affirmed. --------- Notes: [*] Before Levy, Acting P. J., Pena, J. and Smith, J.